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Harmless v. Lizzaraga

United States District Court, E.D. California

June 29, 2017

HOWARD MARTIN HARMLESS, Petitioner,
v.
J. LAZZARAGA, Respondent.

          ORDER

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's motion to hold an evidentiary hearing and to appoint counsel (ECF No. 36), motion to expand the record (ECF No. 41), and motion for discovery (ECF No. 42). Respondent opposes the motions. (ECF No. 43.) For the reasons outlined below, the court denies each motion.

         The court will first address petitioner's motions to expand the record and for discovery (ECF Nos. 42; 43) because the evidence sought in those motions is at the core of petitioner's request for an evidentiary hearing and for counsel to represent him at the hearing (ECF No. 36).

         I. Motion to Expand Record and Motion for Discovery

         Petitioner moves the court to expand the record and afford him additional discovery so that he may prove claims 10 and 13. (ECF Nos. 41; 42.) Specifically, petitioner requests discovery related to the prosecution's interviews of the primary prosecution witness at trial. Petitioner seeks documentation of the interviews with this witness, the work product of the prosecutor, as well as any statements discovered during the investigation of his case. (ECF No. 42.)

         In his motion for an evidentiary hearing (ECF No. 36), petitioner explains in greater detail what information he is seeking and the reason for the discovery requests. In that motion, petitioner specifies that he is seeking additional information to prove claims 10 and 13 in his petition, which are: (10) Ineffective assistance of counsel for failure to object when the prosecutor purportedly elicited perjured testimony from the primary prosecution witness; and (13) Prosecutorial misconduct rendering the trial unfair through the purported eliciting of perjured testimony of the primary prosecution witness. (Id. at 2-6.)

         A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). However, Rule 6(a) of the Federal Rules Governing Section 2254 Cases provides that a “judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and limit the extent of discovery.” Before deciding whether a petitioner is entitled to discovery under Rule 6(a), the court must first identify the essential elements of the underlying claim. See Bracy, 520 U.S. at 904. The court must then determine whether the petitioner has shown “good cause” for appropriate discovery to prove his or her claim. See id. However, “[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.” Williams v. Taylor, 529 U.S. 420, 437 (2000).

         Federal habeas claims are analyzed under the framework of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. In Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), the Supreme Court held that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the requirements of § 2254(d). See id. at 187 n. 11 (“[Petitioner] has failed to show that the [state court] unreasonably applied clearly established federal law on the record before that court, which brings our analysis to an end.”) (internal citations omitted). In Runningeagle v. Ryan, 686 F.3d 758, 773-74 (9th Cir. 2012), the Ninth Circuit explained that Pinholster governs discovery, expansion of the record and evidentiary hearings. Thus, Pinholster bars a habeas court from any further factual development on these claims, unless the court first determines that the state court made an unreasonable application of federal law or made an unreasonable determination of facts based on the record before it. Pinholster, 563 U.S. at 202 n. 20.

         Here, the California Supreme Court rejected claims 10 and 13 on their merits in the state habeas proceedings, holding that counsel was not ineffective and that petitioner was not prejudiced by prosecutorial misconduct. (See ECF No. 1 at 3, 17, 20, 31.) Pinholster thus does not permit discovery absent the showing discussed above. See Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th Cir. 2013) (“Thus, for claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of § 2254(d)”). Accordingly, discovery is not warranted until and unless petitioner makes a threshold showing that the state court made an unreasonable application of federal law or made an unreasonable determination of facts based on the record before it.

         Petitioner bears a heavy burden to show that his ineffective assistance of counsel and prosecutorial misconduct claims meet the § 2254(d) requirements, in light of the doubly-deferential standard under AEDPA and the Strickland standard of review for ineffective assistance of counsel. Harrington v. Richter, 562 U.S. 86, 105 (2011). In the motions to expand the record, for discovery, and for an evidentiary hearing, petitioner fails to address how he has met the § 2254(d) threshold showing as required in Pinholster -- that the state court made an unreasonable application of federal law or made an unreasonable determination of facts based on the record before it. Accordingly, the court will deny the motions for discovery and expansion of the record (ECF Nos. 41; 42) on the basis that petitioner has yet to show that 28 U.S.C. § 2254(d) applies.

         Furthermore, petitioner's motions for discovery and expansion of the record are not warranted on the basis that he has not demonstrated that he has met the statutory requirements set forth in 28 U.S.C. § 2254(e)(2):

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was ...

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